Gift agreements are concluded quite often in our country. In some cases, along with the gift, not only the ownership of the gift passes to the recipient, but also the obligation to pay debts associated with the gift.
Important
Giving debts is a violation of the rights of the donee , because any debts regarding the maintenance of the property presented as a gift that arose before the moment of donation, the donor is obliged to repay at his own expense.
At the same time, under a deed of gift, one person can repay the donee’s debt to a third party or forgive the donee’s debt within the framework of the donor’s statutory right to release the donee from one or another property obligation to himself or to another person. This is a completely different form of donation of debts, which should be recognized as completely legitimate.
What debts can be donated?
Debt is a monetary or property obligation of a citizen or organization in relation to the creditor (lender). It occurs when applying for loans, mortgages, receiving money against a receipt, late payment of utilities and other services.
According to Art. 572 of the Civil Code of the Russian Federation, a citizen or legal entity has the right to grant the right to claim a loan to the donee, or to release him from obligations to himself or a third party.
For example:
A citizen borrowed 100,000 rubles to a friend. A few months later they agreed to forgive the balance of the debt - 50,000 rubles. This is supported by a gift agreement (hereinafter - DD), which confirms the release of debt obligations without presenting counterclaims.
Important! Donation is possible between individuals or legal entities. But if organizations (donor and donee) are engaged in commercial activities, the transaction is prohibited by Art. 575 of the Civil Code of the Russian Federation.
Donation of the donee's debt through transfer to the donor
In such transactions, a third party is involved - the creditor; his consent will be required for the transfer of debt, because DD his rights are affected. The creditor can be an individual or an organization.
There are other features provided for in Art. 576, 391, 392 Civil Code of the Russian Federation:
- the consent of the creditor and the donee-debtor is required;
- the moment of transfer of the loan to the donor is considered to be the receipt by the creditor of notification of the parties’ intentions regarding the transaction, if he has given prior written consent to the change of debtor;
- if the donee’s debt arose in connection with entrepreneurial activity, the donor and the creditor have the right to draw up an agreement on the transfer of the loan (if the DD does not indicate the subsidiary liability of the original debtor, the donee and the donor are jointly and severally liable).
If the donor does not agree with the initial demands presented by the creditor to the former debtor, he has the right to file an objection on the basis of Art. 392 of the Civil Code of the Russian Federation. However, he cannot exercise the donee’s right to set off a counterclaim (Article 410 of the Civil Code of the Russian Federation) against the creditor.
How to draw up a gift agreement for an individual entrepreneur?
How to draw up a gift agreement for an employee (employee)?
Transfer of the right to claim debts from a third party
According to clause 3 of Art. 576 of the Civil Code of the Russian Federation, the donor may transfer the right to claim the debt of a third party to the donee, but in compliance with the rules of Chapter. 24 of the Civil Code of the Russian Federation, namely Art. 382-386, 388, 389 of the said code.
The transaction is relevant when the donor has a debtor (individual or enterprise), and he wants to transfer the right to claim the debt to the donee.
What rules are important to consider:
- The debtor's consent is not necessary unless this is provided for in the terms of the credit or loan agreement. If the prohibition on assignment is violated, the court may declare the DD invalid.
- The assignment of the right to claim obligations in the event of improper performance is made without the permission of the debtor, but the procedure should not burden him with the fulfillment of obligations (clause 4 of Article 388 of the Civil Code of the Russian Federation).
- After transferring the right of claim, the donee must notify the debtor. If he repays the debt before receiving the notice, the demand will be considered fulfilled. It is better to send the notification to the donor, because... Until such a document is received, the donee theoretically has no relation to the debtor, and he may not take his letter into account.
- If the transaction entails significant expenses for the debtor, the donee and the donor enter into a joint and several obligation to reimburse them.
Important! The right of claim is transferred to the donee on the terms current at the time of the transaction. They can change them later. Other rights that the original creditor had are also transferred to them.
It is also worth considering that the transfer of the right of claim for debts that are inextricably linked with the identity of the creditor is not allowed. You cannot give the opportunity to demand alimony, compensation for harm to life and health, and other payments.
How can an apartment donor protect himself from possible eviction?
It so happens that a will inspires much more confidence in people than a gift - although both options allow you to transfer property to a loved one free of charge.
It is clear that few are willing to part with their home during their lifetime by signing a deed of gift.
But a will would be good for everyone if it did not have one serious drawback: it does not protect against the so-called. obligatory heirs who, by law, can receive a guaranteed share in the inheritance, despite the will of the testator.
So in this regard, donation is more reliable, since real estate can be transferred to a specific person even before the inheritance opens and division begins.
But in order to get the maximum benefit from a gift, and not harm, you need to carefully consider its design. I will illustrate this with an example from court practice.
The elderly woman's only joy in life was her grandson. She had a very strained relationship with her own son (the father of her grandson) (having received a disability, he began to abuse strong drinks).
And when, due to a tragic accident, the mother passed away, the grandmother took the boy in with her, raised him and, as they say, doted on him.
Worried about her grandson, she really wanted her apartment to go only to him - and turned to a notary to draw up a will.
But he immediately warned that since his son has a disability, he can legally claim a mandatory share in the inheritance (Article 1149 of the Civil Code of the Russian Federation). Therefore, even if there is a will in favor of a grandson, there is no 100% guarantee that the apartment will completely pass to him.
The grandmother was not happy with this option, so she decided to give her apartment to her grandson during her lifetime. Then the apartment, having ceased to be her property, could no longer go to her heirs - incl. and mandatory.
No sooner said than done. The grandmother signed a gift agreement with her grandson, including, for reliability, a clause stating that she retains the right to live in the apartment for life.
The transaction was registered with Rosreestr - and the grandson became the full owner of his grandmother’s apartment.
Only a few years later, what is so feared when giving a gift happened: it turned out that the grandson was mired in debt and was forced to sell his grandmother’s apartment.
The woman failed to invalidate the purchase and sale agreement, since no violations were committed during its conclusion. The court recognized the buyer's right to the apartment - and now the grandmother was under threat of eviction.
If the new owner wants to vacate the apartment, it will not be difficult for him to evict the grandmother. According to the law, family members of the former owner lose the right to housing along with him (Part 2 of Article 292 of the Civil Code of the Russian Federation). So all he has to do is file a claim in court, and grandma will remain on the street.
The clause in the agreement that she retains the right to lifelong use of the housing, alas, does not apply to the new owner. After all, the gift agreement and all the obligations associated with it were concluded with the grandson. And the buyer of the apartment has nothing to do with this transaction - and, accordingly, should not provide housing to the grandmother.
The law does not allow the gift of housing with the condition that the recipient cannot subsequently sell it or dispose of it in any other way. But you can protect yourself from possible eviction.
Along with the gift agreement, you need to conclude another one - an agreement for the gratuitous use of housing for a long period. Under such a transaction, the obligations of the previous owner are transferred to the new owner (by virtue of direct instructions in the law - Article 700 of the Civil Code of the Russian Federation).
Then the buyer would have to provide housing for the grandmother, since the obligation of the grandson would pass to him.
The main thing is to conclude a contract for free use for a certain period (for example, 30-40 years), since the owner can cancel an open-ended contract at any time by warning the tenant a month in advance.
But terminating a contract early, which specifies a specific period of validity, is very problematic. Therefore, before giving an apartment to a loved one, think a hundred times.
Even if you are 100% confident in your decision, it would still be a good idea to sign another important agreement - for the free use of housing. At the moment, this is the maximum possible protection for the donor.
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Do housing and communal services debts transfer when donating an apartment?
The moment the right of ownership to real estate arises for a citizen from the date of state registration in Rosreestr.
Along with the right, obligations also pass: to pay for utilities, maintenance of property, landline communications, etc. Ownership rights are terminated after state registration in connection with the donation, sale, or exchange of housing. During the period from the beginning until the termination of registration of such a right, obligations are assigned to the owner of the property, therefore, after the donation, they remain with him.
If there is a debt associated with the donated apartment, it will be collected from the donor. The recipient is not responsible for his actions or inaction.
Legal advice: before registering a deed of gift, obtain a certificate from the Criminal Code stating that there is no debt, so that in the future there will be no problems with the donee.
Can a donated apartment be taken away for debts?
Property is a valuable asset that can be lost if a bank client misses payments and becomes a habitual defaulter. Moreover, from the point of view of legislation and commercial structures, it does not matter whether it is gifted, purchased or inherited - this is property that can be recovered.
The situation can be complicated by the presence of a child - the state protects the interests of minors and very strictly ensures that they are not left homeless. Therefore, legal proceedings with clients with registered children often do not lead to immediate satisfaction of the bank’s claims. Most often, you have to wait until the child turns 18 years old.
Gifting and forgiveness of debts between individuals
Debt forgiveness occurs without the participation of a third party, because the creditor in this case is the donor. The transaction is made on the basis of Art. 415 of the Civil Code of the Russian Federation by mutual consent of the donor and the donee. It is important that the rights of another individual or organization are not affected.
Debt obligations upon forgiveness are terminated from the moment the donee receives the relevant notification from the creditor. The debtor has the right to submit objections within a reasonable time.
When forgiving a debt, it is important that the contract contains the mandatory elements of a gift: gratuitousness, the intention to release the donee from the obligations imposed on him.
The Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 104 states that donation through forgiveness occurs if there is an intention of the creditor to release the debtor from obligations to him free of charge. If a settlement agreement is concluded between the parties to repay the debt in a smaller amount, the transaction is not recognized as a gift.
Important! Commercial organizations can forgive each other's debts by donation, but in the amount of no more than 3,000 rubles.
Legislator's position in 2021
Experienced lawyers argue that in matters of debt when making a gift, one principle applies, namely, the owner of the property under whom the debts arose must pay. At the same time, it is worth recalling that the transfer of certain debt obligations to third parties is impossible. For example, this applies to alimony payments or compensation for damage to human health.
The giving party has the right to fulfill the debt obligations of the donee, which the latter has incurred to another person, if the following conditions are taken into account:
- The creditor agreed that the debts should be repaid not by the borrower, but by the donor.
- An agreement or other legal act regulating the debt obligations of the donee does not contain a condition that the latter must personally fulfill his obligations to the creditor.
The procedure for drawing up a gift agreement for loan forgiveness
Most often, forgiveness occurs between individuals if the money was issued against a receipt. A deed of gift can be issued only for the amount of the loan with penalties, penalties, etc. If the donor draws up a deed of gift, but obliges the debtor to pay the money, this is not considered a gift.
How to draw up a gift agreement for the loan amount:
- Notify the debtor of the intentions. It is better to do this in writing so that he can present objections on paper.
- Enter into a contract. If the previous agreement or receipt is certified by a notary, the DD for debt forgiveness is also certified by a notary.
Both parties must be present when concluding the transaction. Documents you will need are passports and the original contract.
Contents of the gift agreement for debt forgiveness
The legislation does not establish requirements for a deed of gift, but when granting the right to claim a debt from a third party or forgiving a loan, the donee must provide complete information about the transaction:
- FULL NAME. creditor and debtor, passport data;
- date of loan, amount, interest rate;
- the donor’s intention to release the donee from obligations free of charge;
- date of entry into force of the DD;
- the balance of the forgiven debt.
If the right to claim a loan is transferred from a third party, you will need information about him.
Sample gift agreement for the loan amount:
How to challenge a loan agreement (promissory note)
The most common document in divorce proceedings is a promissory note. It is often compiled “retrospectively”, and the receipt of money from it is also recognized as personal funds. But there are much more options to challenge such a document than a deed of gift.
The most popular method is a motion to falsify evidence. This application has a number of mandatory procedures that must be carried out to verify the applicant’s arguments.
Alexey Lobanov
Head of Legal Bureau
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For example, if you believe that a loan agreement or promissory note was drawn up later than the date specified in the agreement, then it is worth submitting an examination of the prescription of drafting. In this case, the judge warns the parties about criminal liability for falsifying evidence if the arguments are confirmed, and about knowingly false testimony if they are not confirmed. But in the latter case, the case rarely moves into the criminal procedural plane. Moreover, before starting this procedure, the judge gives the right to the party that submitted the disputed documents to exclude them from the case file and then no one will be punished. And such cases are not uncommon.
Excerpt from the court decision
Appeal ruling of the Moscow City Court dated November 14, 2018 in case No. 33-49194/2018
While giving explanations on these circumstances in the court of first instance, V.E. indicated that their family was helped financially by their parents, and even presented two receipts about this, but after filing V.A. statements about falsification of evidence, refused said evidence.
Financial capacity of the lender and debtor
If a party refers to the fact that he received money from a third party (for example, a relative), then the other party is not deprived of the right to demand evidence of the origin of the money in order to be able to lend it.
You can also check the debtor’s income based on the receipt - whether he could have fulfilled it within the time limits indicated or whether the transaction was imaginary in order to exclude the property from the list of jointly acquired property.
Excerpt from the court decision
Appeal ruling of the Moscow Regional Court dated June 29, 2015 in case No. 33-15158/15
Assessing the arguments of the plaintiff, who believed that T.V. did not have the financial ability to loan a large sum to the defendant, since he himself acquired a plot of land in the Ramensky district of the Moscow region, with an area of 2147 square meters. m, for summer cottage construction, with the right to erect a residential building, which is confirmed by an extract from the Unified State Register. T.V. After acquiring the land, a house with an area of about 200 sq. m. was built. m, while the average monthly income of T.V. amounted to no more than 20,000 rubles per month, the court declared them wealthy.
Taxes upon gift of claim or debt forgiveness
If the right to claim money from a third party is granted, there is no need to pay personal income tax. In fact, the donee returns money that belongs to the donor, and he, in turn, gives it to him.
Tax obligations arise for the debtor whose debt has been forgiven - he must pay 13% of the amount. If the debtor is a legal entity, the amount of debt that he could spend on returning to the creditor is included in unrealized income (Article 250 of the Tax Code of the Russian Federation).
Property received by an organization free of charge is not subject to tax if the gift is received from a founder with a share in the authorized capital of more than 50%, or from another enterprise that has invested 50% or more in the capital.
Challenging a gift agreement
The grounds for challenging the deed of gift are listed in Art. 578 of the Civil Code of the Russian Federation and other legislative acts. The donor has the right to cancel the transaction if the donee has made an attempt on his life or health, or on the health of a close relative.
The heirs of a donor who died as a result of intentional unlawful actions of the donee also have the right to contest. A sentence that has entered into legal force will be required.
Third parties whose rights are affected by the transaction can file a claim for cancellation of the DD.
Arbitrage practice
The practice of challenging contracts for the transfer of debt or assignment of rights of claim is small, as well as debt forgiveness, and finding relevant solutions is problematic. The court may invalidate the DD if the plaintiff provides maximum evidence to support the claims.
Some examples of solutions for which the requirements are satisfied in full or in part:
- Decision No. 2-3438/2019 2-3438/2019~M-1925/2019 M-1925/2019 dated June 10, 2021 in case No. 2-3438/2019;
- Decision No. 2-2979/2018 2-87/2019 2-87/2019(2-2979/2018;)~M-2690/2018 M-2690/2018 dated April 9, 2021 in case No. 2-2979/2018 ;
- Decision No. 2-1020/2019 2-1020/2019(2-1469/2018;)~M-482/2018 2-1469/2018 M-482/2018 dated January 28, 2021 in case No. 2-1020/2019 .
Lawyer's answers to frequently asked questions
Is it possible to donate an apartment with utility debts?
Yes, but the debt will remain with the donor.
My mother gave me an apartment with property tax debts. Who should pay for everything?
Property tax is paid by the donor for the period before the termination of ownership.
Owes the bank money on a loan. Does he have the right to donate it to collectors?
Yes, banks are allowed to donate or sell bad debts to collection agencies.
Is it possible to donate an apartment with a mortgage?
Yes, but with the consent of the bank. Two options are allowed: full repayment of the debt before the conclusion of the DD, or re-registration of the contract for the donee.
Do the debt obligations of the donor pass to the donee after the deed of gift is executed?
No, this is only possible through inheritance. Debts are paid by heirs within the value of the inherited property.
Gift deed for an apartment after the death of the donor
Many people are interested in the question of whether it is possible to return a gift after the death of the recipient. The law of the Russian Federation establishes that in the event of the death of the donee, the deed of gift is recognized as an invalid document, since in this situation there is simply no recipient of the gift.
A donation after the death of the donor is considered incomplete, since the new owner has not taken possession of the property. When the rights to an apartment or land ownership have not been registered to the new owner, the donated apartment after the death of the donor is included in the inheritance, which means it is transferred to the heirs for their use.
